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American firms sue USCIS over policy changes to H-1B visa

USCIS issued a policy memo in February that imposed greater restrictions on companies that contract out their H-1B workers to third-party worksites.

The policy memo allowed USCIS to demand additional detailed documents from employers who sent H-1B workers to third party work sites.(AFP File Photo)

Three American firms that use H-1B visas have filed a lawsuit against policy changes by the US Citizenship and Immigration Services (USCIS) that have increased scrutiny of employers, saying the new measures are illegal.

USCIS issued a policy memo in February that imposed greater restrictions on companies that contract out their H-1B workers to third-party worksites. The new measures were in line with the Trump administration’s steps to impose more limits on the visa programme.

The lawsuit, filed by tech staffing firms NAM Info and Derex Technologies and the Small and Medium Enterprise Consortium, said USCIS had overstepped its authority, according to Axios. The firms sought a temporary restraining order against the enforcement of the memo, which they said could make the H-1B programme unusable.

All three firms have offices in New Jersey and India. However, they are much smaller players than the bigger firms that get a majority of H-1B visas.

The policy memo allowed USCIS to demand additional detailed documents from employers who sent H-1B workers to third party work sites.

The memo said such companies will have to outline specific work requirements for the H-1B visa holders, prove the holders will be performing a specialty occupation and show the employees will have the same contract for the duration of the H-1B visa, media reports said.

“Congress has consistently shown the public policy is to increase access to IT professionals, and not increase burdens on US companies to retain this resource,” said the lawsuit filed in a federal court in New Jersey on Tuesday.

The three firms said the new H-1B requirements will “choke out” their work by denying them the visas and visa extensions. “Without sufficient employees to meet their clients’ needs, Plaintiffs will suffer irreparable harm to reputation and ability to compete,” the lawsuit said.

Jonathan Wasden, the lead lawyer for the three firms who formerly worked at USCIS’s Administrative Appeals Office and the Justice Department, told Axios that many contracting companies would be unable to comply with the new policy because of how they operate, leaving them unable to receive and provide needed talent.

USCIS and the Department of Labor share responsibility for the H-1B programme, with the department responsible for deciding which employers qualify for the visas. The lawsuit states that USCIS’s new rules contradict the Department of Labor’s rules, and overstep USCIS’s role in the programme.

As President Donald Trump pushes ahead with its “Buy American, Hire American” initiative, his administration has been putting the squeeze on the H-1B programme in line with his campaign promises to protect the interests of American workers.

Critics of the H-1B programme have accused companies of outsourcing jobs and leaving Americans jobless. The USCIS has argued that violations of the programme, such as paying less than the government-mandated wage, are more likely when a visa holder works for a third party.

The US grants 85,000 H-1B visas every year to enable American and America-based companies to hire highly skilled foreign workers — 65,000 from abroad and 20,000 from among foreign students enrolled in American universities — for positions they can’t fill locally. More than 70% of the visas go to Indians.

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